In an increasingly digitally-driven world, what are your rights to access the digital assets of an individual who has appointed you to handle their affairs?
On June 29, 2020, the Saskatchewan government enacted The Fiduciaries Access to Digital Information Act (the "Act"). Saskatchewan is one of the first provinces in Canada to enact comprehensive legislation regarding fiduciary access to the digital assets of an individual who has passed away, become incapacitated, or has appointed an attorney or trustee. This insight discusses the general purpose and key provisions of the Act.
Purpose of the Act
The Act addresses four types of fiduciaries:
- a personal representative of a deceased's estate;
- an appointed property guardian; a property attorney acting under a power of attorney; and
- a trustee (the "Fiduciaries").
Essentially, the Act governs how these Fiduciaries are to gain access to digital assets of a deceased person, a person subject to guardianship, a grantor of a power of attorney, or a beneficiary of a trust (collectively referred to in the Act as "Account Holders").
A Fiduciary may need access to the electronic records of an Account Holder in order to properly carry out their legal obligations as a Fiduciary. The purpose of the Act is to facilitate Fiduciary access, while maintaining respect for the privacy and intention of the Account Holder.
The legislation provides a definition of "digital asset", and the definition is broad enough to encompass many types of electronically stored information, such as:
- Any information stored on a computer and other digital devices;
- Content uploaded into websites, ranging from photos to documents (including, for example, social media sites, blogs, cloud storage, and financial services); and
- Rights in digital property, such as domain names or digital entitlements associated with online games and material created online.
- The Act creates a default rule that a Fiduciary is able to access the digital assets of the respective individual which they are in the Fiduciary relationship with.
- This default rule can be changed by the terms of a will of the deceased; letters of administration; a guardianship order; a power of attorney; a trust; or by court order.
- The Act creates a default rule that a Fiduciary will have access to any personal property that has the capability of storing digital assets, subject to the intentions provided in a will, power of attorney, or trust. This would include, for example, a computer, cellphone, tablet or external hard drive.
- Provisions in service agreements between organizations that store digital information and Account Holders are unenforceable against a Fiduciary to the extent that the provision limits a Fiduciary's access to a digital asset.
Digital assets held by individuals are increasing in number and value. Therefore, individuals should give careful consideration to requests regarding their digital assets upon the use of one of the relevant legal instruments mentioned above to ensure their wishes are properly reflected.
Considerations for Organizations
Organizations that store digital information should also be aware that this legislation may impact the enforceability of provisions in their services agreements limiting the access of Fiduciaries to digital content. Notably, a Fiduciary's right of access can still be limited through a provision in the service agreement if the Account Holder agrees to the provision on or after the date this Act came into force, and the organization obtains an additional affirmation from the Account Holder (separate and apart from the services agreement) that they do not want to grant access to a Fiduciary. Importantly, it is the "last-in-time" instrument or order that takes precedence over any earlier instrument, order or online instructions of an Account Holder that will be used to define the Account Holder's intention.
Organizations that store digital information are not liable for any loss incurred with respect to a digital asset of an Account Holder if the organization complies with the Act, provided the actions are not dishonest or conduct contrary to the intentions of an Account Holder.
The lawyers at MLT Aikins have significant experience in estate planning, powers of attorney, trusts, and service agreements, and would be happy to discuss how the introduction of this legislation may require changes to these legal instruments.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.